• 09 Jun 2021 9:19 AM | Kathi McKeown

    River City Fraternal Order of Police v. Kentucky Retirement Systems

    Dockets: 20-5778, 20-5773 

    Opinion Date: June 8, 2021

    Judge: Jeffrey S. Sutton 

    Areas of Law: Health Law, Insurance Law, Labor & Employment Law, Public Benefits

    The plaintiffs retired from the Louisville Metropolitan police department and received free health insurance, administered by Kentucky Retirement Systems. Kentucky initially paid all of their healthcare costs. After the officers turned 65, Medicare became the primary payer, leaving Kentucky to cover secondary expenses. Each officer came out of retirement, joining county agencies different from the ones they served before retiring. They became eligible for healthcare benefits in their new positions. Kentucky notified them that federal law “mandate[d]” that it “cannot offer coverage secondary to Medicare” for retirees “eligible to be on [their] employer’s group health plan” as “active employees.” Some of the officers then paid for insurance through their new employers; others kept their retirement insurance by quitting or going part-time. The officers sued. The district court granted summary judgment to the officers, ordered Kentucky to reinstate their retirement health insurance, and awarded the officers some of the monetary damages requested. The Sixth Circuit affirmed. The officers have a cognizable breach-of-contract claim. Under Kentucky law, the Kentucky Retirement Systems formed an “inviolable contract” with the officers to provide free retirement health insurance and to refrain from reducing their benefits, then breached that contract. The Medicare Secondary Payer Act of 1980 did not bar Kentucky from providing Medicare-eligible police officers with state retirement insurance after they reentered the workforce and became eligible again for employer-based insurance coverage, 42 U.S.C. 1395y.

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  • 01 Jun 2021 9:26 AM | Kathi McKeown

    Vitolo v. Guzman

    Dockets: 21-5517, 21-5528 

    Opinion Date: May 27, 2021

    Judge: Thapar 

    Areas of Law: Business Law, Civil Rights, Government & Administrative Law, Public Benefits

    The American Rescue Plan Act of 2021 allocated $29 billion for grants to help restaurant owners. The Small Business Administration (SBA) processed applications and distributed funds on a first-come, first-served basis. During the first 21 days, it gave grants only to priority applicants--restaurants at least 51% owned and controlled by women, veterans, or the “socially and economically disadvantaged,” defined by reference to the Small Business Act, which refers to those who have been “subjected to racial or ethnic prejudice” or “cultural bias” based solely on immutable characteristics, 15 U.S.C. 637(a)(5). A person is considered “economically disadvantaged” if he is socially disadvantaged and he faces “diminished capital and credit opportunities” compared to non-socially disadvantaged people who operate in the same industry. Under a pre-pandemic regulation, the SBA presumes certain applicants are socially disadvantaged including: “Black Americans,” “Hispanic Americans,” “Asian Pacific Americans,” “Native Americans,” and “Subcontinent Asian Americans.” After reviewing evidence, the SBA will consider an applicant a victim of “individual social disadvantage” based on specific findings. Vitolo (white) and his wife (Hispanic) own a restaurant and submitted an application. Vitolo sued, seeking a preliminary injunction to prohibit the government from disbursing grants based on race or sex. The Sixth Circuit ordered the government to fund the plaintiffs’ application, if approved, before all later-filed applications, without regard to processing time or the applicants’ race or sex. The government failed to provide an exceedingly persuasive justification that would allow the classification to stand. The government may continue the preference for veteran-owned restaurants.

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    Carhartt, Inc. v. Innovative Textiles, Inc.

    Docket: 20-1826 

    Opinion Date: May 27, 2021

    Judge: McKEAGUE 

    Areas of Law: Business Law, Commercial Law, Contracts

    In 2009, Carhartt contracted with Innovative to create a flame-resistant fleece fabric for use in its line of flame-resistant garments. The fabric that Innovative developed for Carhartt, “Style 2015," contained a modacrylic fiber, “Protex-C.” Innovative agreed that it would conduct flame-resistance testing on the Style 2015 fabric before shipping it to Carhartt, using the industry-standard test, ASTM D6413. Carhartt sent Innovative emails in 2008, 2010, 2011, 2012, and 2013 stating that Carhartt would do “regular, random testing on the product that is received.” Carhartt performed visual inspections but did not conduct flame-resistance testing until 2016. The Style 2015 fabric failed the D6413 test. Carhartt notified Innovative, which then conducted its own testing and concluded that Style 2015 fabrics dating back to 2014 did not pass flame-resistance testing. In 2013, Innovative stopped using Protex-C and began using a different modacrylic fiber without notice to Carhartt. The district court granted Innovative summary judgment on Carhartt’s negligence, fraud, misrepresentation, false advertising claims. breach of contract and warranty claims. The court reasoned that Carhartt did not notify Innovative of the suspected breach within a reasonable amount of time after Carhartt should have discovered the defect, as required by Michigan’s Uniform Commercial Code. The Sixth Circuit reversed. Reasonable minds could differ as to whether Carhartt should have discovered the breach sooner by performing regular, destructive fire-resistance testing on the fabric.

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    Jackson v. Genesee County Road Commission

    Docket: 20-1334 

    Opinion Date: May 27, 2021

    Judge: Gibbons 

    Areas of Law: Civil Rights, Labor & Employment Law

    Jackson, an African American woman, was GCRC's Human Resources Director. Daly, GCRC’s chief administrative officer, was Jackson’s supervisor. There were pending internal discrimination complaints when Jackson started, including a complaint by African American employees about Bennett. Jackson ultimately negotiated a severance agreement with Bennett. A second issue involved McClane’s complaints about Williams, GCRC’s finance director, who subsequently resigned. Jackson was also responsible for approving Equal Employment Opportunity Plans submitted by vendors and contractors. Jackson realized that several vendors’ EEOPs had expired and became concerned that some GCRC directors were conducting business with vendors before their EEOPs were approved. Jackson implemented several changes in GCRC’s EEOP approval process. Several employees, vendors, board members, and union representatives complained to Daly about Jackson’s “abrasiveness” and communication style. Other employees reported having good experiences with Jackson. Daly fired Jackson without giving a reason other than she was an at-will employee. Jackson filed a retaliation claim under Title VII of the Civil Rights Act and Michigan’s Elliot-Larsen Civil Rights Act. The district court granted GCRC summary judgment. The Sixth Circuit reversed. Jackson engaged in protected activity and there remains a genuine factual dispute as to causation. Jackson’s actions could reasonably be viewed as steps to ensure there was no discrimination in hiring both within GCRC and among its vendors, and were protected activity under Title VII. A reasonable juror could find that Jackson has established a prima facie case of causation through circumstantial evidence including the temporal proximity between Jackson’s protected activity and termination.

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  • 01 Jun 2021 9:14 AM | Kathi McKeown

    Baker v. Iron Workers Local 25

    Docket: 20-1946 

    Opinion Date: May 28, 2021

    Judge: Jeffrey S. Sutton 

    Areas of Law: Arbitration & Mediation, Civil Procedure, ERISA, Labor & Employment Law

    The Labor Management Relations Act forbids employers from directly giving money to unions, 29 U.S.C. 186(a); an exception allows an employer and a union to operate a trust fund for the benefit of employees. Section 186(c)(5)(B) requires the trust agreement to provide that an arbitrator will resolve any “deadlock on the administration of such fund.” Several construction companies and one union established a trust fund to subsidize employee vacations. Six trustees oversaw the fund, which is a tax-exempt entity under ERISA 26 U.S.C. 501(c)(9). A disagreement arose over whether the trust needed to amend a tax return. Three trustees, those selected by the companies, filed suit, seeking authority to amend the tax return. The three union-appointed trustees intervened, arguing that the dispute belongs in arbitration. The court agreed and dismissed the complaint. The Sixth Circuit affirmed. While ERISA plan participants or beneficiaries may sue for a breach of statutory fiduciary duty in federal court without exhausting internal remedial procedures, this complaint did not allege a breach of fiduciary duties but rather alleges that the employer trustees’ own fiduciary duties compelled them to file the action to maintain the trust’s compliance with tax laws. These claims were “not directly adversarial to the [union trustees] or to the Fund.”

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    Garland v. Orlans, PC

    Docket: 20-1527 

    Opinion Date: May 28, 2021

    Judge: Nalbandian 

    Areas of Law: Civil Procedure, Consumer Law, Legal Ethics

    The Orlans law firm, sent a letter on law-firm letterhead, stating that Wells Fargo had referred the Garland loan to Orlans for foreclosure but that “[w]hile the foreclosure process ha[d] begun,” “foreclosure prevention alternatives” might still be available if Garland contacted Wells Fargo. The letter explained how to contact Wells Fargo “to attempt to be reviewed for possible alternatives,” the signature was typed and said, “Orlans PC.” Garland says that the letter confused him because he was unsure if it was from an attorney and “raised [his] anxiety” by suggesting “that an attorney may have conducted an independent investigation and substantive legal review ... such that his prospects for avoiding foreclosure were diminished.” Garland alleges that Orlans sent a form of this letter to thousands of homeowners, without a meaningful review of the homeowners’ foreclosure files, so the communications deceptively implied they were from an attorney. The Fair Debt Collection Practices Act (FDCPA) prohibits misleading debt-collection communications that falsely imply they are from an attorney. The Sixth Circuit affirmed the dismissal of the purported class action for lack of jurisdiction. Garland lacks standing. That a statute purports to create a cause of action does not alone create standing. A plaintiff asserting a procedural claim must have suffered a concrete injury; bare allegations of confusion and anxiety do not qualify. Whether from an attorney or not, the letter said nothing implying Garland’s chance of avoiding foreclosure was “diminished.”

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    Wyatt v. Nissan North America, Inc.

    Docket: 20-5021 

    Opinion Date: May 28, 2021

    Judge: Karen Nelson Moore 

    Areas of Law: Labor & Employment Law

    Wyatt began working as a Nissan project manager in 2013. For two years she received positive annual performance reviews. During those years, Wyatt twice had medical leave. Nissan restored Wyatt to her position and granted nearly all the work accommodations recommended by Wyatt’s doctor. In 2015, Wyatt began working on a project headed by Mullen who sexually harassed and assaulted her. Wyatt’s complaints led to Mullen leaving the company. At the same time, Wyatt took medical leave for back surgery. Upon her return, she and her doctors requested workplace accommodations, similar to those she had previously requested. Nissan denied her request for a 40-hour workweek. Wyatt claims that managers harassed her about her requests and gave Wyatt her first “below expectations” annual evaluation, Wyatt filed a charge of discrimination with the EEOC. Her managers later issued Wyatt a Performance Improvement Plan. Wyatt refused to sign the PIP, believing that it was retaliatory. In February 2017, Wyatt took medical leave and continues to be on leave. Wyatt filed suit, alleging hostile work environment, Title VII, 42 U.S.C. 2000e; failure-to-accommodate, Americans with Disabilities Act, 42 U.S.C. 12101l and retaliation claims under Title VII, the ADA, and the Family and Medical Leave Act, 29 U.S.C. 2601. The district court granted Nissan summary judgment. The Sixth Circuit affirmed with respect to Wyatt’s ADA discrimination claim and claims that were based on retaliatory harassment but reversed with respect to Wyatt’s hostile work environment and retaliation claims based on adverse employment actions.

  • 02 May 2021 2:03 PM | Kathi McKeown

    KDC is pleased to welcome its newest member:

    Kalenga Maweja of Ward, Hocker & Thornton, PLLC, Louisville is a University of Northern Kentucky Chase College of Law graduate.  Ms. Maweja practice in the areas of Auto, Bad Faith, Construction, Insurance Coverage, Premises Liability, Product Liability, Tort and Trucking.  She is sponsored by KDC member, Rebecca Burroughs.

  • 30 Apr 2021 8:27 AM | Kathi McKeown

    KDC welcomes its two newest members:

    William Brammell of Dressman Benzinger LaVelle PSC, Crestview Hills, University of Kentucky Law School graduate.  Mr. Brammell practices in the areas of Civil Rights, Employment, General Liability, Insurance Coverage and Federal Criminal.  He is sponsored by KDC Director, Ryan McLane.

    Enrique Lopez of E Lopez Law PLLC, Edgewood, is a graduate of the University of New Hampshire Law School.  Mr. Lopez practices in the areas of Commercial and Contract law.  He is sponsored by KDC Director, Jeff Mando.

  • 18 Apr 2021 9:36 AM | Kathi McKeown

    KDC is pleased to welcome its newest member:

    Eric W. Thomas of Gwin Steinmetz & Baird, PLLC, Louisville.  Mr. Thomas is a Brandeis School of Law - University of Louisville graduate and practices in the area of Auto.  He is sponsored by KDC member, Robert L. Steinmetz.

  • 29 Mar 2021 8:57 AM | Kathi McKeown

    KDC welcomes its newest member:

    William T. Donnell of WhittenDonnell, Louisville is a University of Kentucky Law School graduate.  Mr. Donnell practices in the areas of Insurance and Trucking.  He is sponsored by KDC member, Robert L. Steinmetz.

  • 18 Mar 2021 10:47 AM | Kathi McKeown

    For those of you who are members of DRI, the March 17 issue of DRI's The Voice featured this article by KDC Immediate Past President, Claire Parsons.  Just another reason you need to be a member of KDC and DRI!

    How Do I Find the Time to Post on LinkedIn? I Follow My Dream

    Feature2_GettyImages-1293202717

    By Claire E. Parsons

    In the legal profession, we like the term “plan” and tend to look down on the word “dream.” A plan sounds strong. It sounds like you know your business. It sounds like each step is charted out with a nice, little path that heads straight towards success. Dreams, on the other hand, are esoteric and ethereal because they are literally the product of a sleeping mind. Though they are often born from real life, they are usually so discombobulated that they rarely resemble it. So, we lawyers don’t admit to having dreams often, but we always have a plan. 

    Or so we think. Did you have a plan for 2020? I did, and I bet you did, too. But for most of us, all plans went out the window in March as states of emergency were declared, events were called off, and our offices were shut down. Despite this, I had a great year in 2020. And it wasn’t because of my plans; it was because of my dreams. 

    In November, I achieved one of my dreams: publishing a book, #Networked, which I wrote with nineteen other women lawyers who I found on LinkedIn. How did that come about? You guessed it: I met them following a dream. In addition to my law practice, I love writing. It is a passion that has slowly emerged over time as I allowed it. I started writing legal articles and then moved onto blogs about other topics, including law practice, life as a working mom, and mindfulness meditation. Though I had no clue what I was doing or where it might lead, it seemed I was pretty good at it. As I shared my work, people engaged with it, republished it, and expressed that they enjoyed what I had to say. 

    This led me to think, “Hey, maybe a lawyer at a small firm in Kentucky might actually be able to write a book someday that a few people will read.” In 2019, I started toying with this idea more and spoke to friends who had published books. They offered great writing advice, but also let me know that a network and a following would be helpful. By that time, I had already started posting on LinkedIn regularly to share my tips on life, law practice, and leadership. Having always been a nerd and someone who rarely presents in an Instagram-worthy pose, I was astounded to see that there was a whole community of other lawyers with an appetite for down-to-earth honesty, occasional bits of awkward humor, and real facts about life as a working parent. 

    When things shut down in March, I was fortunate to have already begun the process of creating this community. My new friends from the internet provided inspiration and support at a time when in-person inspiration and support was limited. From them, I got ideas, knowledge about how to use social media better, and so much wisdom about law practice, business, and networking. But I got something even more valuable: validation and confidence. Their feedback and support helped me realize that I had something to say, and that the world and our profession needed to hear it.

    So, I kept writing daily posts about working at home, the value of being different, my struggles with perfectionism, anxiety, and mental health, writing, networking as an introvert, and things that mattered to me as a lawyer, a person, and a mom. And as I did, my network grew from around 500 to nearly 5,000 today. It wasn’t long until these new contacts led to business referrals and new opportunities to speak and write, including the chance to write and publish #Networked. 

    Don’t get me wrong. Planning is part of progress. You cannot survive on dreams alone. But my point here is that you cannot thrive without them. Planning helped me create a process for creating content. I used it to identify topics, pay enough attention to the algorithm to avoid being constantly batted down by it, and to grow my network consistently over time. But my dream of writing a book provided the inspiration and motivation to keep going. It inspired me to post on days that I did not feel like it and to keep coming back when a post didn’t do as well I expected. It gave me courage to reach out to new people who interested me, even though as an introvert my tendency is to do everything on my own. It reminded me that there was always something bigger that my small, daily actions might help me to achieve.

    Other lawyers often ask me how I “find the time” to write so much and to post each day on LinkedIn. I think they are expecting me to give them a time management strategy. I think they are looking for a plan. Some of my co-authors have plans, some of which are described in the chapters of #Networked, and I admire them for executing their plans incredibly well. But I don’t rely on plans when I post on LinkedIn, blog, or write. I follow my dreams instead. It has allowed me to share ideas and parts of myself that I never thought I could, make friends who I never would have met otherwise, and create opportunities for my firm and myself where none existed.  

    If you are considering using social media actively or writing more, I do not dissuade you from planning. For us to manage our lives and practices and add anything new into the mix, planning, without question, is essential. But to create something where it didn’t exist before, or to try something that is new (and hard―and scary), or to keep on going and adjusting and learning from every failure requires more. To persist in the face of all of that, you need a dream. I sincerely hope that 2021 is much gentler with all our plans, but more than anything, I hope this year gives you a chance to dream.  

    ParsonsClaire-21-webClaire E. Parsons is a member at Adams Law PLLC in Covington, Kentucky. She is a member of the DRI Governmental Liability, Women in the Law, and DRI for Life Committees and a past president of Kentucky Defense Counsel, Inc. She is a frequent, writer, speaker, and certified meditation teacher, who recently launched a blog on mindfulness for lawyers called Brilliant Legal Mind. You can follow her blog on Wordpress or social media or connect or follow Claire on LinkedIn

    This is the third installment in a three-part series from the DRI Women in the Law Committee, which previews three chapters—each written by DRI members—from the recently published book, #Networked: How 20 Women Lawyers Overcame the Confines of Social Distancing to Create Connections, Cultivate Community, & Build Businesses in the Midst of a Global Pandemic (available from Amazon.com). Each of these women share their struggles, celebrate their victories, and provide examples of how the pandemic has been not just a time of destruction and loss, but also a time for opportunity and growth. (Part onePart two.)   


  • 15 Mar 2021 4:49 PM | Kathi McKeown

    Congratulations to our super Social Committee Chair, Jarad Key, for another fun round of Trivia!  The questions were themed around March Madness.  The winners of the round of Trivia post Spring Seminar are:

    Andrew Yocum, Mike Bishop, Jason Coltharp, Todd Page, Rachel Stratton, Curt Graham, Mike Bishop, Paul Lawless, Jim Freel, Chris Colson, Graham Barth and Ian Loos.

  • 15 Mar 2021 3:21 PM | Kathi McKeown

    For those of you who are members of DRI, check out pages 52 and 53 in DRI's For the Defense, March 2021 issue where you'll find the article "Rising to the Challenge in 2021" prepared by DRI's Young Lawyers Committee Chair, Stephanie M. Wurdock.

    Stephanie also served as Chair of KDC's YLS for two years and we wish her the best in the year she serves in this position with DRI.

    You can look at Stephanie's article by clicking here.  YLC Article Mar '21.pdf

    If this article perks your interest in DRI, please feel free to reach out to KDC members, Beth Lochmiller and Ashley Brown, who serve as DRI State Rep and DRI State Membership Rep for Kentucky.


 
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